ARA-13.03 - Campaign Finance: Complaint Process

Background:

These rules are based on a voter-approved Charter amendment, related City Code, and subsequent court rulings.

A. Filing a Complaint

1. City Elections, a division of the Auditor's Office, is responsible for enforcing the City's campaign finance laws. Complaints alleging violations of the City's campaign finance regulations must be filed in writing, either online, by email, or by mail. 
   1. Complainants are encouraged to use the online complaint form if possible.
   2. Complainants should send emailed complaints to elections@portlandoregon.gov.
   3. Complainants should send mailed complaints toPortland City Elections, 1221 SW 4th Ave, Room 130, Portland, OR 97204.
   4. Complainants who need help making a complaint should email elections@portlandoregon.gov or call the City Elections office.
2. A complainant may request that the Auditor's Office keep their name, contact information, and identifying details confidential.
   1. A complainant may request confidentiality of their identity at any time.  Whenever possible, complainants are encouraged to request confidentiality when first communicating with the Auditor's Office about the complaint. 
   2. After receiving a request, the Auditor's Office will treat identifying information as confidential and exempt from public disclosure under ORS 192.355(4) except as required by law or these rules.
      1. The Auditor's Office may disclose identifying information if:
         1. a court with authority to do so orders disclosure or 
         2. it is impossible to conduct a thorough investigation without also disclosing identifying information. For example, when investigating, the Auditor's Office must disclose relevant evidence to a person who is the object of the complaint.
      2. If the Auditor's Office discloses identifying information, it will limit the disclosure as much as possible under the circumstances. 
      3. The Auditor's Office will determine which details about a complainant are identifying.
3. Complaints should include the following information:
   1. Name(s) and contact information of complainant(s). City Elections does not accept allegations submitted anonymously.
   2. The name of the candidate(s), campaign(s), political committee(s), individual(s), or other entity or entities alleged to have violated the City's campaign finance regulations.
   3. A description of the alleged violation(s) that includes sufficient detail for the Auditor's Office to understand both (1) the specific facts that support the alleged violation(s) and (2) the law(s) that the respondent(s) are alleged to have violated.
      1. Example: a complaint alleges that a person (1) issued a specific communication (such as a flyer sent by mail), and (2) that the communication failed to disclose the true original source of its funding as required by City Code Section 2.10.030.  The complaint would likely meet the standard.
      2. Example: a complaint could allege that a candidate (1) received a specific contribution from an individual and (2) that the contribution exceeded the $500 limit in City Code Section 2.10.010.  The complaint would likely meet the standard.
   4. The date(s) of the violation(s).
   5. Any applicable dollar amount(s) associated with the violation(s), if known.
4. Complainants are encouraged to include with the complaint all relevant documentation or evidence they may have pertaining to the violation(s).
5. Duplicative allegations or allegations that are substantially similar to those in an ongoing investigation or a previously rendered decision will not be reinvestigated.

B. Complaints Involving Small Donor Elections Program Participants

1. Candidates who participate in the City's Small Donor Elections public funding program, are eligible to receive any amount of money that the program's rules permit.
2. If a complaint alleges violation(s) of both Small Donor Elections requirements and City campaign finance laws, the Auditor's Office may do one or both of the following:
   1. Refer the complaint to the Small Donor Elections program for its own investigation, or
   2. Submit a question to the Small Donor Elections program and request an advisory determination about compliance with Small Donor Elections requirements. 
      1. The Auditor's Office may rely on such advisory determination when investigating a campaign finance complaint.
3. If the Small Donor Election program conducts an investigation after providing an advisory determination to the Auditor's Office and draws a different conclusion than it reached in the advisory determination, the Auditor's Office may withdraw and reconsider its own determination in accordance with subsection F.2.a.

C. Initial Review and Evaluation

1. Within two calendar days of receiving or issuing a complaint, the Auditor's Office shall notify any object of the complaint by providing a copy thereof. 
2. For every complaint it receives, the Auditor's Office will conduct an initial review and evaluation as specified in City Code Section 2.10.050 E.
3. The purpose of the initial review and evaluation is for the Auditor's Office to determine whether the complaint alleges plausible facts that amount to a possible violation of the City's campaign finance law.
4. The Auditor's Office may consider any relevant information when conducting its initial review and evaluation, including but not limited to: 
   1. The specific facts alleged in the complaint.
   2. Relevant information of which the Auditor's Office is aware and that is readily and publicly accessible, such as data from Oregon's Election System for Tracking and Reporting (ORESTAR) or communications made by a candidate, political committee, or Independent Spender on a website. 
5. If, after applying the standards in City Code Section 2.10.050 E.3, the Auditor's Office determines that the complaint alleges plausible facts that state a possible violation of City campaign finance law, the Auditor's Office will open an investigation. 
6. If, after applying the standards in City Code Section 2.10.050 E.3, the Auditor's Office determines that the complaint does not allege plausible facts that state a possible violation of City campaign finance law, the Auditor's Office will dismiss the complaint. 
   1. Example A: A complaint alleges only that a City candidate violated the contribution limits set forth in Charter Section 3-301. The complaint provides no specific facts about a contribution, such as when it occurred and from whom it was received. The complaint should be dismissed because it contains no specific facts to support the alleged violation. 
   2. Example B: A complaint alleges that a City candidate violated the contribution limits set forth in Charter Section 3-301 because the complainant observed the candidate personally receiving a contribution of one trillion dollars, delivered in a suitcase full of hundred-dollar bills.  A single suitcase cannot physically hold that amount of currency. The complaint should be dismissed because the facts alleged in the complaint are not plausible.
   3. Example C: A complaint alleges that a candidate for state governor violated contribution limits.  The complaint does not allege a violation that City Elections can enforce, because it concerns a candidate for state, not City, office.The complaint should be dismissed because it does not state a possible violation of City campaign finance law.
   4. Example D: A complaint alleges that an incumbent City candidate used information they learned in nonpublic meetings with City employees to schedule a campaign event at a City park before planned renovations would turn the park into a construction zone unsuitable for the event.The complaint does not identify any specific City Code section that the candidate violated. The complaint should be dismissed because it does not state a possible violation of City campaign finance law.
   5. Example E: A complaint describes specific facts and alleges that a candidate violated City Charter Section 3-302, pertaining to limits on campaign expenses.  The Auditor's Office follows court rulings that determined that section was not enforceable. The complaint should be dismissed because it does not state a possible violation of an enforceable City campaign finance law.
7. If the Auditor's Office dismisses the complaint but believes that it raises an issue that another enforcement entity could address, the Auditor's Office may, in addition to dismissing the complaint, refer the issue to that enforcement entity or back to the complainant.
8. Within the time required by Portland City Code Section 2.10.050 E.3, the Auditor's Office will complete the initial review and evaluation and notify the complainant and any object of the complaint about the result by issuing either a notice of dismissal or a notice of investigation.
9. The Auditor's Office will post the complaint and the result of the initial review on its public website. 
   1. If the Auditor's Office dismisses the complaint on initial review, the Office will post the complaint and the result of the initial review after the time to contest the initial review has expired.
   2. If the Auditor's Office opens an investigation, the Office will post the complaint and its preliminary decision after investigation. 

D. Investigations

1. During its investigation, the Auditor's Office may issue and seek enforcement of subpoenas requiring the production of any relevant information necessary to determine whether a violation of City campaign finance law occurred and, if so, what the penalty should be. 
   1. Subpoenas will require a response no earlier than seven calendar days after issuance, unless a shorter period is required to comply with applicable deadlines.
   2. Should a person or entity fail to comply with a subpoena, the Auditor's Office may:
      1. Draw adverse inferences in its determination against any individual or entity that fails to comply with a subpoena; and/or
      2. Apply to the Multnomah County Circuit Court for an order to the subpoenaed party that requires the party to comply with the subpoena or show cause for noncompliance.
2. The Auditor's Office will complete investigations by issuing a written preliminary decision within the time required by City Code Section 2.10.050. 
3. The Auditor's Office may extend the default deadline to render a preliminary decision if it finds good cause under City Code Section 2.10.050 F. Good cause may exist under the following circumstances:
   1. The Auditor's Office has only the mailing address for the subject of a complaint, despite good faith efforts to find alternative contact information.  Additional time is needed to allow meaningful investigation by the Auditor's Office and meaningful participation by mail-only parties.
   2. The Auditor's Office has requested but not received information that is critical to its preliminary determination. 
   3. The Auditor's Office is experiencing unusual delays in collecting or evaluating key information.  For example, an investigator must travel to collect evidence or use an outside expert to evaluate it.
   4. One or more witnesses who are key to a rigorous investigation are temporarily unavailable.
   5. Late in the investigation, the Auditor's Office receives new information that could have a material effect on its determination, and the Office or the object of the complaint require additional time to engage meaningfully. 
   6. An investigation is unusually legally or factually complex, or involves unusually voluminous documentation, and the Auditor's Office requires additional time to conduct a rigorous investigation.
   7. The Auditor's Office cannot complete its work until a court or other government entity resolves an issue related to the investigation. 
   8. Two or more investigations have overlapping factual or legal issues; in order to maintain consistency and fairness in its determinations, the Auditor's Office cannot resolve one investigation without first resolving the other. 
   9. The Auditor's Office is handling an unusual and unanticipated volume of complaints and requires additional time to conduct a rigorous investigation.
   10. The Auditor's Office is experiencing operational emergencies, such as critical staff shortages, that affect its ability to conduct a rigorous investigation. 
   11. The object of a complaint is experiencing a documented personal, safety, or family emergency that impacts their ability to respond meaningfully. 
   12. The Auditor's Office cannot conduct a rigorous investigation within the default timeline due to a human-created or natural event or circumstance that causes or threatens widespread loss of life, injury to person or property, human suffering, or financial loss.  For example, a natural disaster, dangerous or destructive weather event, infrastructure failure, outbreak of disease, civil disturbance, or other emergency.
   13. Any need for delay that is similar in type or nature to the needs specifically listed above.
4. Notices:
   1. The Auditor's Office will notify the complainant and the objects of the complaint about any deadline extension in writing before the relevant deadline expires.  Notices will include the grounds for the extension.
   2. The Auditor's Office will publicly post public notices required by City Code Section 2.10.050 F.1-.2 on its website before the relevant deadline expires.

E. Preliminary Decisions

1. The Auditor's Office shall make a preliminary decision on each complaint in a written document that states whether the alleged violation of the City's campaign finance regulations occurred and provides the factual and legal basis for that determination.
2. The Auditor's Office shall make its preliminary decisions using a "preponderance of the evidence" standard.  In other words, the Office shall determine, based on the evidence, whether it is more likely than not that the object of the complaint violated a City campaign finance regulation.
3. Decisions on complaints with multiple objects
   1. When issuing preliminary decisions on complaints that specify more than one object of the complaint, the Auditor's Office may decide to issue all of its preliminary determinations simultaneously or to issue its determinations on a rolling basis, one object of the complaint at a time.
   2. When deciding whether to issue one more preliminary decision documents, the Auditor's Office shall consider the public need for transparency, the effect of earlier-issued documents on continuing investigations or requested hearings, and fairness to the parties. 
4. Preliminary decisions may take three forms: a dismissal, a warning and letter of education, or a notice of proposed violation. 
   1. Preliminary decision – no violation. If the Auditor's Office does not find that an entity or individual violated one or more of the City's campaign finance laws, the Auditor's Office will issue a written determination in the form of a dismissal.  A dismissal may also provide written or oral guidance or education that serves the goal of future compliance.
   2. Preliminary decision – violation.  If the Auditor's Office finds that an entity or individual violated one or more of the City's campaign finance laws, the Auditor's Office may issue either (i) a notice of violation and proposed penalty or (ii) a warning and letter of education. 
      1. The Auditor's Office shall default to issuing a notice of violation and proposed penalty.
      2. The Auditor's Office may issue a warning and letter of education as described in this subsection.
         1. For purposes of this subsection, "good faith effort" means what a reasonable person would determine is a diligent attempt to comply with the City campaign finance regulations under the circumstances. 
         2. A warning and letter of education may be issued if:
            1. The warning and letter is for a first-time violation, and
            2. There is no mandatory minimum penalty prescribed in the Code, and
            3. The object of the complaint made a good faith effort to comply with Code Chapter 2.10,
         3. Once an election date has passed, the values of deterrence and provision of timely information to the electorate are diminished. Therefore, a warning and letter of education may also be issued if:
            1. The complaint or preliminary determination occurs after the relevant election date, and 
            2. There is no mandatory minimum penalty prescribed in the Code.
      3. Whenever the Auditor's Office determines that an entity or individual violated one or more of the City's campaign finance laws, it shall include in its preliminary decision:
         1. The name of the individual or entity found to be in violation of the City's campaign finance regulations.
         2. A brief description of the complaint and the Auditor's Office's findings.
         3. For violations of timely disclosure requirements, all available and previously undisclosed information found through the investigation about the involved communication donor(s).
      4. All notices of violation and proposed penalty shall include a statement of the amount proposed as a civil penalty, if any, and instructions for paying the civil penalty.
5. Civil Penalties
   1. The civil penalty for each contribution or expenditure violation may not be less than two nor more than 20 times the amount of the unlawful contribution or expenditure.
   2. If the civil penalty cannot be determined based on an unlawful contribution or expenditure, the Auditor's Office will determine an appropriate civil penalty up to $3,000 per violation.
   3. In determining the amount of a civil penalty, the Auditor's Office may consider mitigating or aggravating factors, including:
      1. The overall budget and resources available to the campaign or entity.
      2. The number of previous violations by the penalized party within the same election cycle.
      3. Whether the violation was repeated and continuous or isolated and infrequent. The Auditor's Office may choose to treat repeated similar actions occurring during the same election cycle as aggravating circumstances under a single violation.
      4. Whether the violation appears to have been made knowingly based on relevant circumstances and available records.
      5. The campaign or entity's level of cooperation during the investigation, including providing timely and relevant information as requested.
      6. The amount of penalties, if any, previously imposed on the same party or other parties under similar circumstances.
      7. For communications disclosure violations: The size of the intended audience and the cost of the communication.
      8. For contribution and expenditure violations: The size of the contribution or expenditure.
      9. Whether complaints have been filed in apparent abuse of the complaint process. This can occur, for example, when complaints against a potential competitor are filed repeatedly with similar allegations occurring in a short period, instead of filing all allegations as one complaint.
      10. Any other applicable factors the Auditor's Office deems relevant.
   4. Limits on civil penalties imposed under this rule do not include interest. Civil penalties not paid within 60 days from the payment due date may be subject to 10 percent simple interest per annum. 
6. Notice of Preliminary Decision.  The Auditor's Office shall notify all interested parties of its preliminary decision.
   1. Notices shall:
      1. state the date of the decision prominently on the first page.
      2. include a copy of or link to the written preliminary decision.
   2. Notices to complainants and objects of the complaint shall also state that the party has a right to request a hearing and shall include a copy of or link to these rules.

F. Withdrawal and Reconsideration

1. The Auditor's Office may withdraw and reconsider a preliminary decision as described in this section. 
2. Timing and Scope of Reconsideration.
   1. The Auditor's Office may withdraw and reconsider a preliminary decision at any time if necessary to conform to a Small Donor Program determination as described in section B.3.
   2. Until a request for hearing has been filed, or until the request period has expired (whichever is earlier) the Auditor's Office may withdraw a preliminary decision for the purpose of reconsidering any issue, either on its own initiative or at the request of an interested party,
   3. For ten days after a request for hearing has been filed, the Auditor's Office may withdraw the preliminary decision on its own initiative for the purpose of reconsidering any of the issues raised in the hearing request. The purpose of such withdrawal is to for the Auditor's Office to determine whether it agrees with any of the issues raised in the hearing request and whether it can either (i) resolve the issues without a hearing or (ii) streamline the issues for hearing.
   4. Parties who wish to raise issues for reconsideration are encouraged to notify the Auditor's Office early, before submitting a request for hearing, so the Auditor's Office may address the issue promptly.
3. The Auditor's Office may request or review any additional information it deems useful when deciding whether to withdraw and reconsider.
4. If the Auditor's Office withdraws a preliminary decision, it will issue a new preliminary decision within 30 days.
   1. The Auditor's Office will provide notice of the new preliminary decision in the same way it provided notice of the original preliminary decision.
   2. The Auditor's Office may extend the deadline to issue a new preliminary decision in the same manner as the deadline for the original preliminary decision.
5. The following parties may request a hearing with a neutral hearings officer to review the Auditor's Office's decision on sufficiency review or its preliminary decision:
   1. The complainant in a complaint that resulted in a dismissal, either upon sufficiency review or after investigation.
   2. Any entity or individual who was subject to a notice of violation and proposed penalty or to a warning and letter of education. 

G. Hearing

1. A valid hearing request must contain the following:
   1. The requesting party's name; 
   2. The requesting party's mailing address, email address, and telephone number;
   3. If the requesting party is the complainant, the name(s) of the object(s) of the complaint.
   4. The date of the notice that informed the requesting party of the challenged determination.
   5. One or more reasons why the requesting party believes the challenged determination was wrong, and a brief explanation of the party's reasoning.
      1. If the party believes the challenged determination misapplied the law, it should briefly state appropriate citations and reasoning.
      2. If the party believes that the challenged determination misstated the facts, it should explain what the determination should have stated and why.
   6. Reasons why the error(s) in the challenged determination led to the wrong result.
   7. Whether the requesting party agrees to accept hearing-related documents by email, and the email address to be used.
      1. Parties are encouraged to accept hearing-related documents by email; such communication streamlines the hearing process substantially.
2. To be timely, a hearing request must be received by the Auditor's Office by 5:00:00 p.m. on the 30th calendar day after the date on the first page of the notice that informed the requesting party of the challenged determination. 
   1. Parties are encouraged to submit their requests by email to elections@portlandoregon.gov.
   2. Parties may mail or hand-deliver paper hearing requests to the Auditor's Office.  To be timely, forms must be personally received by a staff member before the deadline.  Parties should call or check the Auditor's Office website to ensure a staff member will be available to receive the form.
3. If the Auditor's Office does not receive a hearing request before the deadline, the case will be closed, and the preliminary decision will become final on the calendar day after the deadline passed. 
   1. The Auditor's Office will issue a notice informing the parties that the preliminary decision has become final. 
   2. If the preliminary decision was a notice of violation and proposed penalty, the Auditor's Office will also issue a notice of violation and final penalty to the entity or individual found to be in violation, specifying a due date for payment.
4. If the Auditor's Office receives a timely hearing request, the Auditor's Office shall deliver the request to a neutral hearings officer, who will control the hearings process and decision.
5. Upon receiving the hearing request, the Hearings Officer shall notify the complainant and all objects of the complaint that a hearing request has been filed and work with the parties to set a hearing date within 30 days of the request for hearing.
6. Parties.
   1. The default parties to the hearing shall be the Auditor's Office and the part(ies) who requested a hearing.
   2. Any other entity or individual may join as a party if 
      1. they filed the complaint or the contested preliminary determination found them to have violated City campaign finance law; and
      2. they notify the Hearings Officer that they wish to be a party to the hearing, by filing a notice of appearance that includes: 
         1. The party's name; 
         2. The party's mailing address, email address, and telephone number; and 
         3. Whether the party agrees to accept hearing-related documents by email, and the email address to be used.  Parties are encouraged to accept hearing-related documents by email; such communication streamlines the hearing process substantially.
   3. Any other party who wishes to participate as a party, a limited party, or as an amicus ("friend of the court") must request and receive permission from the Hearings Officer. In determining whether to grant permission, the Hearings Officer shall consider whether the party would provide helpful information or perspectives, whether the hearing could affect the party's rights directly or indirectly, how the party's participation would affect judicial efficiency, and whether the party's participation would serve the interest of justice.
   4. Notices of appearance and requests to participate as a party must be filed with the Hearings Officer within 7 days of the date on the Hearing Officer's notice that a hearing request has been filed.
7. The Hearings Officer may extend deadlines for good cause, after considering the schedules of the Hearings Officer and the parties, the availability of witnesses and evidence, the complexity of the factual and legal issues involved, the equitable and efficient administration of justice, and the public interest in timely resolution.
8. Discovery and Case Management.  Unless otherwise provided by these rules, discovery and case management shall proceed as stated in the Attorney General's Model Rules of Procedure for Contested Cases. 
9. Conduct of the Hearing
   1. Unless otherwise provided by these rules, the conduct of the hearing shall proceed as stated in the Attorney General's Model Rules of Procedure for Contested Cases.
   2. The Hearings Officer will conduct a de novo review of the Auditor's Office's preliminary decision and will render a decision as to whether the decision or determination is justified by a preponderance of the evidence in the record and applicable legal standards.
10. The Hearing Officer may decline to consider any evidence presented by a party if the Hearing Officer determines that 
    1. the party did not provide the information to the Auditor's Office before the preliminary decision; and 
    2. the party should have reasonably known that the information was relevant to the Auditor's Office's investigation, whether or not the Auditor's Office requested it specifically; and 
    3. it was reasonably possible for the party to have provided the information to the Auditor's Office.
11. The Hearing Officer shall issue a decision within 30 days after the hearing concludes and shall simultaneously notify the parties of the decision.
12. The Hearings Officer's decision shall constitute a final order, subject to judicial review in the Multnomah County Circuit Court on a writ of review.
13. A decision is considered final for purposes of Code Section 2.10.050.L: 
    1. For decisions that are appealed to Circuit Court, following the completion of any judicial review or the final disposition of any appeal; 
    2. For decisions that are not appealed to Circuit Court, when the time to appeal to the Circuit Court has expired.